To whom and how is this right granted?
Every worker has the right to rest days, while the employee retains his position and average earnings. This point is clearly explained by Article 21 of the Labor Code of the Russian Federation.
Is any employer obliged to provide an employee with annual rest after 6 months after hiring the person?
Yes, the right to vacation, which arises for an employee after six months of work at a new place, does not depend on the legal form of the employer’s activities (individual entrepreneur, LLC, JSC), on the work schedule and the amount of earnings. Leave is due to all workers without exception, including those who work part-time.
The employer does not have the right to transfer an employee to another workplace or dismissal during vacation, as well as to deprive him of vacation benefits. This point is clearly explained in Article 114 of the Labor Code of the Russian Federation.
Note! There is some nuance. The right to leave is available only to those persons who are officially registered with the company, that is, with the conclusion of an employment contract, a mark in the work book and other norms provided for by Russian legislation, and nothing else.
Agency and civil law contracts do not establish employment relationships and therefore do not guarantee the provision of leave. These types of contracts should not be confused with an employment contract. In exceptional cases, agency and civil law contracts may be recognized as employment contracts. Accordingly, in this case they will have all the guarantees that are provided for employees of the Labor Code of the Russian Federation.
Features of filling out the vacation schedule
According to the Labor Code of the Russian Federation, the sequence of annual paid vacations is established according to the schedule. It is left two weeks before the end of the current working year. This is enshrined in Article 123 of the Code.
If, at the time of drawing up the schedule, the organization has employees who have been working in the company for less than six months, it must be included in the schedule for the next year.
If an employee’s circumstances change and he gains the right to receive paid days off earlier, the manager is obliged to make appropriate adjustments to the vacation schedule.
What is included in the length of service for accrual?
Seniority begins from the moment the employee starts work. If there was a change of job and a transition to another organization, the report will accordingly start from scratch. The period of time that was worked by the person in the previous company will not be taken into account and will be taken into account in the new place.
Vacation experience includes:
- Every day of donation.
- All types of sick leave.
- Granted study leaves.
- Probation periods.
- Downtime due to the fault of the employer.
- Holidays and weekends.
- Annual leave.
- Time off for previously worked time.
Time off that the worker took at his own expense is included in the length of service in the same way. However, such days shift annual leave. If, for example, employee Ivanova I.A. When the time for rest came, and she took 10 days at her own expense, then the annual leave will automatically shift to this period.
Sick leave to care for a child while on vacation
If an employee gets sick while on vacation, they can apply for paid sick leave and reschedule the vacation.
Note!
If a child is sick, this cannot be done.
While the employee is on vacation, he is released from work, so there is no need to issue a sick leave for child care. If the baby has not recovered before the end of the vacation, you can open a sick leave and not go to work.
Sick leave will not be paid during vacation; accruals can only be received from the day the vacation ends. To receive payments, you need to provide your employer with a sick leave certificate from a doctor.
Leave to care for a sick child under 7 years old can be taken at any time of the year. If you need to care for a child under 18 years of age, sick leave can be provided when the minor:
- HIV-infected and being treated in a hospital setting;
- has cancer;
- needs prosthetics on any part of the body.
There is a maximum number of days per year when you can care for a sick child:
- up to 7 years - 60 days;
- from 7 to 15 years - 45 days;
- from 15 to 18 years - 30 days;
- for a disabled child - 120 days.
For certain diseases, a child under 7 years of age can be cared for 90 days a year. The names of these diseases are listed in Order No. 84 of the Ministry of Health and Social Development of the Russian Federation. These include diseases of the nervous system, respiratory system, and digestion.
To pay for sick leave, 60% of the average daily earnings of an employee is taken for less than 5 years of work experience, 80% of the SDZ - for 5-8 years of experience, 100% of the SDZ - for more than 8 years of experience.
To calculate the amount, the average daily earnings are multiplied by the number of days on vacation.
Example:
An employee took 7 days of sick leave to care for her 6-year-old child. Her work experience is 4 years, and her average daily earnings are 887 rubles. You need to take 60% of average earnings, because... the woman has been working for less than 5 years.
887 * 0.6 = 532.2 rub.
CO = 532.2 * 7 = 3,725.4 rubles.
Consequently, the employee will receive 3,725.4 rubles for sick leave.
Note!
If the employee’s insurance period is less than six months, then payments will be calculated from the minimum wage. In 2021 it will be 11,280 rubles.
Who has the right to take rest days immediately after employment?
Is it possible to go on vacation before 6 months? Are there any categories of citizens who have the right to take a vacation without working for 6 months? Yes. The right to early leave before the employee has worked for six months is extended to the following citizens:
- Spouses of persons who serve.
- A citizen whose wife went on maternity leave.
- Heroes of the Russian Federation.
- Honorary donors of the Russian Federation.
- Persons who have donated blood 40 times or more.
- Minor workers (granting leave to employees under 18 years of age is discussed here).
- Citizens who received radiation exposure while performing work in Semipalatinsk and liquidators of the Chernobyl accident.
- Adoptive parents of babies up to three months of age.
- Veterans.
- Knights of the Order of Glory.
- Women in position before maternity leave.
- Mothers caring for children under three years of age.
All of the above categories of citizens can be granted early leave, that is, leave before the employee has worked for 6 months. Employers do not always make concessions and comply with the laws of the Russian Federation, or do so without much desire.
Recommendation. All issues related to vacation must be discussed in advance with the employer to avoid conflict situations.
What to do if they don’t give it?
In some companies, the employer may ignore legislative acts and not provide vacation during the summer. Or offer a vacation in September, explaining that September can also be considered a summer month when it comes to vacations.
Each organization draws up a vacation schedule for employees. Employees must sign the schedule, agreeing with the vacation dates chosen by the employer . In this case, if the signature is affixed, it will be difficult to achieve a revision of the vacation dates, especially if there is no common understanding with the employer.
Here you can learn more about approving the vacation schedule.
The only thing that remains is to contact the labor inspectorate in this case, or threaten such an appeal so that the employer changes the dates (if the employee belongs to a preferential category). The threat of contacting the labor inspectorate will most likely ruin the relationship with the employer, so leave this as a last resort.
The best solution would be to find compromises and establish communication with the employer.
When is a new employee added to the vacation schedule?
The employee is included in the vacation schedule upon his employment. In this case, the schedule is formed no later than 14 days before the new year.
The schedule is approved by the director of the company after the schedule is fully drawn up by an HR department specialist or HR employee.
This point is explained by Article 123 of the Labor Code of the Russian Federation. The form that is used for this is called Form T-7.
Who benefits from the benefit?
Employees who have a priority right to paid vacation in the summer are:
- adoptive parents of children under 3 months (Article 122 of the Labor Code of the Russian Federation);
- maternity leave, before (after) leave under BiR (Articles 122, 260 of the Labor Code of the Russian Federation);
- husbands of women on leave under BiR (Article 123 of the Labor Code of the Russian Federation);
- workers who have not reached the age of majority (Articles 122, 267 of the Labor Code of the Russian Federation);
- spouses of a person in military service (Federal Law 76 Art. 11-11);
- working disabled people, WWII veterans, workers of military facilities during the WWII, blockade survivors” (FZ-5, art. 14, 16, 17,18, 19);
- heroes of the Soviet Union and Russia (FZ-4301-1, art. 8);
- part-time workers if they have summer vacation at their main job (Article 286 of the Labor Code of the Russian Federation);
- honorary donors (Federal Law-125 Art. 23-1-1);
- fathers and mothers with many children, parents of children with disabilities (Articles 262.1, 262.2 of the Labor Code of the Russian Federation).
In addition, according to Art. 128 of the Labor Code of the Russian Federation, the right to go on vacation at their own expense at any convenient time, not excluding summer, has:
- WWII participants who continue to work;
- old age pensioners;
- family members of a military personnel;
- disabled workers;
- workers for family reasons, for example, the birth of a child, marriage;
- parents of minors - in some cases.
Each category has its own limit on the provision of leave. One of the most common cases of going on vacation in the summer without pay is for family reasons. Its duration is up to 5 days.
Attention! If an employee has been recalled from annual leave, he has the right to use the remainder during the summer period out of turn (Article 125 of the Labor Code of the Russian Federation).
Parents with children should talk in more detail about extraordinary leaves.
How many days are due after 6 months?
As was written above, every person who is hired in accordance with the current labor legislation of the Russian Federation (officially) has the right to go on their first vacation after working for only six months.
In this case, the worker has the right to take not only 14 days, as everyone usually assumes, but completely all the days provided for by law. This means that the employee must be given 28 days of rest , and no one has the right to interfere with this (you will find more information about the duration of leave in a separate article).
It is a very common misconception that after six months an employee can only ask for two weeks of rest. This is a fallacy and has nothing to do with the law.
However, a request for 28 days of vacation may be immediately refused. At the same time, no one will punish the employer. Indeed, in some areas of activity, a long absence of specific employees can have a detrimental effect on the work of the organization as a whole. In this situation, you should not go into conflict with your employer; it is better to negotiate peacefully and come to a common denominator.
Reference. There are enterprises that may use a special type of leave. In this case, all the nuances must be specified in the employment contract.
Payments to an employee going on vacation must be made three days before the start of the vacation. This is explained by Article 139 of the Labor Code of the Russian Federation.
Transfer of leave at the initiative of the employer
The employer may also need to make changes to the vacation schedule. In enterprises where production volume depends on the number of contracts concluded and orders received, it is sometimes necessary to involve the maximum number of employees in the work so as not to miss the opportunity to gain additional profit. It may also be that difficulties arise with orders, and the employer is not able to provide everyone with the required amount of work. By law, in the event of production downtime, the enterprise is obliged to pay compensation to workers, which is two-thirds of the salary. But it’s more profitable for management to send people on regular vacations.
The procedure for calculating vacation pay if an employee has worked for six months
When calculating vacation pay, a standard scheme is used. The calculation will take into account:
- Number of rest days.
- Average total income.
- Billing period.
How can you calculate?
Let's give an illustrative example: A. A. Ivanova, a cleaning lady at Romashka LLC, has a salary of 15,000 rubles. Bonuses are not provided for according to the employment agreement. Accordingly, earnings for all six months were 15,000 rubles.
Worked by Ivanova A.A. six months and decided to go on vacation. The calculation will be as follows:
15,000/29.4 29.4 IS THE GENERAL RATIO that is established by the state, and it means the average number of days.
As a result of the calculations, the amount turned out to be 510.2. Each day of vacation for a cleaning lady costs 510 rubles 20 kopecks. Now we multiply this amount by 14 days of vacation and get the amount of vacation pay:
510.2*14=7142.8 rubles.
This is exactly the amount the cleaner will receive when she goes on vacation.
Documenting
In this situation, the company’s management needs to formulate an appropriate order and make clarifications to the employee’s schedule and personal documents. An order is formed using written form. It is worth noting that a unified format has not been developed; therefore, an arbitrary format is used.
This option is used when a long vacation duration is set, for example, several weeks or months. When deviations from the schedules are a couple of days, experts recommend using standard form No. T-6. The generated act is sent to the financial department of the enterprise so that payments can be accrued, provided that they are due to the citizen.
Features for parents of disabled children
Such parents have the same rights as other employees. Plus, they are allowed by law to get leave in the summer if they have a child under 14 years old, or in the winter - as is convenient for them.
In addition, the law gives such employees a guarantee of 4 additional paid days off per month. They are allowed to be taken all at once or 1 day a week. But you won’t be able to accumulate such days; after a month they “burn out.” Another limitation is that these additional 4 days per month are provided for both parents. But there is no strict distribution: will the mother use them herself or share them with the father in a proportion beneficial to the family.
Additional summer holiday
Above we talked about basic leave, which is provided annually with pay. In addition, the law provides for certain categories of citizens additional holidays also in the summer.
Additional leave is granted in two cases:
- if it is provided for by legal norms at the federal or regional levels;
- if it must be provided in accordance with the internal policy of the company and its local regulations or an employment contract.
In the second case, the provision of additional leave is entirely the initiative of the employer, so it is impossible to provide details in advance.
Right to use
An employee who has worked continuously for 6 months for an employer is entitled to receive annual leave. In some cases, it is provided at the request of the employee and before the expiration of this period:
- for female employees - before or immediately after maternity leave;
- minor workers;
- adoptive parents of a child (or children) who have not reached three months of age;
- in some other cases provided for by the Federal Law.
